City of Sarasota prevails in Siesta Key Association appeal regarding removal of sand from Big Pass to renourish Lido Key Beach

Nonprofit had launched Circuit Court challenge in March 2017

This Nov. 27, 2020 aerial view of Big Sarasota Pass shows a portion of the waterway where sand was removed for placement on Lido Beach. Image courtesy of Michael Holderness

Florida’s Second District Court of Appeal has ruled for the City of Sarasota in the Siesta Key Association (SKA) case initiated in 2017 in an effort to prevent the removal of sand from Big Sarasota Pass to renourish Lido Key Beach.

The April 14 written opinion, totaling six pages, says that the 12th Judicial Circuit Court “correctly determined that SKA could not maintain an action under section 403.412 [of the Florida Statutes] because the City of Sarasota (City) conducted its operations pursuant to a valid permit,” Judge Edward C. LaRose wrote.

Section 403.412 is titled Environmental Protection Act in the Florida Statutes. Established in 1971, the law says, “The Department of Legal Affairs, any political subdivision or municipality of the state, or a citizen of the state may maintain an action for injunctive relief against:

“1. Any governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water, and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations …”

In response to the decision, Sarasota City Manager Marlon Brown provided the following statement to The Sarasota News Leader: “This latest court ruling once again affirms that the City has complied with all appropriate regulations and state permits in moving forward with the critical Lido Beach renourishment project, which is now nearly complete. We look forward to continuing our long-term partnership with the U.S. Army Corps of Engineers and collaborating with the entire community to ensure the protection of the shoreline, properties and infrastructure on our barrier islands.”

John R. Herin Jr. has served as the outside counsel for the City of Sarasota. Image from the Fox Rothschild website

“Very happy for the City, its residents, business owners and visitors,” John R. Herin Jr., a partner with the Fox Rothschild law firm in Miami, who served as the City of Sarasota’s outside counsel in the case, told the News Leader in an April 14 email. “It’s been a long and arduous journey,” Herin added, “but I think we are finally at the end. I believe the Second DCA opinion is thorough, well thought out — and most importantly — a vindication of the City’s consistent position throughout the litigation that all of SKA’s factual and legal arguments had no merit.”

Carl Shoffstall, president of the Lido Key Residents Association, which was allowed by the Circuit Court to intervene in the case, told the News Leader, “It was the correct decision.” Nonetheless, he added, “We always want to work with everybody along the coast.”

Shoffstall has bemoaned the fact that some media reports on the litigation through the years cast the case as a Lido Key versus Siesta Key battle.

Siesta Key Association President Catherine Luckner was out of town when the opinion was issued on April 14, she indicated to the News Leader in an email. Leaders of the nonprofit were scheduled to speak with their attorney — Kent Safriet of the Tallahassee firm Hopping Green & Sams — mid-morning on April 15, she added in a later email.

Although she also wrote that she planned to issue a comment about the Appeal Court’s decision on April 15, the News Leader had not received that prior to its publication deadline for this issue.

A years-long effort to protect Big Pass

In March 2017, the SKA alleged that the City of Sarasota violated its own Comprehensive Plan policy and the Sarasota County Comprehensive Plan in proceeding with planning for the Lido project without seeking a necessary county permit.

The nonprofit pointed to Section 4.6.1 of the county’s Comprehensive Plan. That says the county prohibits “dredge and fill activities in the Gulf of Mexico, bays, rivers, and streams of the county except to maintain previously dredged functional navigation channels and existing drainage canals.”

No sand ever had been removed from the pass, SKA leaders stressed.

However, during a five-hour hearing on July 23, 2019 before Circuit Judge Andrea McHugh, Tim Litchet, then-director of the city’s Development Services Department, and Alexandrea DavisShaw, the city engineer, both testified that the city staff followed routine procedures in the application for a Florida Department of Environmental Protection (FDEP) permit for the Lido Key Hurricane and Storm Damage Reduction Project.

The city was a joint applicant with the U.S. Army Corps of Engineers (USACE) for the permit, although the USACE was not a party to the case.

Second District Court of Appeal Judge Edward C. LaRose. Image courtesy of the court’s website

(As Judge LaRose noted in the Appeal Court opinion, Sarasota County also was not involved in the litigation.)

Litchet told the Circuit Court that he and DavisShaw had reviewed all the relevant city policies before submitting the application to FDEP in March 2015. “My conclusion was that the project was consistent, is consistent, with the city’s Comprehensive Plan,” Litchet testified.

McHugh ultimately ruled in favor of the city, which prompted the SKA to file the appeal with the Second District Court of Appeal.

In the Court of Appeal opinion, Judge LaRose pointed out, “Lido Key’s shoreline has eroded over the decades.” In fact, City of Sarasota leaders have talked about just how severe the erosion had grown over the years, especially on the southern end of the barrier island, in spite of smaller-scale renourishment initiatives. Condominium owners on South Lido documented Gulf of Mexico waves crashing over structures during numerous storm events.

Judge LaRose further noted that the Joint Coastal Permit the city and the USACE received from FDEP “‘did not eliminate the necessity to obtain any other applicable licenses or permits that may be required by federal, state, local or special district laws and regulations.’”

The Circuit Court dismissed the SKA’s original complaint, he continued, “reasoning that the county’s Comprehensive Plan did not qualify as a law, rule, or regulation subject to section 403.412, and that the [permit] ‘appears to preclude’ SKA’s lawsuit.”

Finally, in a second amended complaint filed in Circuit Court, LaRose pointed out, the SKA alleged that the city had violated Section 54-653(4)(a) of the County Code by failing to obtain a dredging permit from the Sarasota County Water and Navigational Control Authority (WNCA). (The County Commission sits as that authority.) The Circuit Court dismissed that count, LaRose noted.

In the appeal, he continued, the SKA argued that “the trial court erred” because it failed to consider the “plain language” of the state’s Environmental Protection Act and that it “did not recognize the distinction between a WNCA permit and [FDEP’s Joint Coastal Permit].”

The city continued to maintain that the state permit was all it and the USACE needed to proceed with the Lido project, La Rose added. Moreover, he noted, the city pointed out that the dredging “‘will occur exclusively on State regulated and owned sovereign submerged lands.’”

Condominium towers are visible across Big Sarasota Pass on the evening of Nov. 29, 2019, not quite a year before the renourishment project began. File photo

In reviewing the provisions of the Environmental Protection Act, LaRose explained, the Appeal Court found that the law “does not require the person or government agency to hold every potentially relevant permit; it only requires the person or government agency to hold and act pursuant to ‘a valid permit or certificate covering such operations.’” Thus, he wrote, “We cannot extend the terms of [the act] beyond their plain language.”

“In this case,” La Rose pointed out, “SKA did not claim that the [FDEP permit] was invalid or that the City failed to comply with its requirements. In fact, SKA admitted in the second amended complaint that the City and the Corps obtained a [Joint Coastal Permit from the state] that authorizes the [Lido] Project. Accordingly,” he added, the trial court correctly ruled that the statute barred SKA’s cause of action.

The dredging of Big Pass began in July 2020, as the SKA was engaged in the appeal. Although the FDEP permit allowed the USACE contractor to remove up to 1.3 million cubic yards of sand to renourish Lido Key Beach, a USACE spokesman told the News Leader in December 2020 that the final tally was 683,084 cubic yards.

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